Eze Anayochukwu Ernest Anyanele Duerueburuo V. Innocent Ikwuneme Nwanedo & Ors (2000)
LawGlobal-Hub Lead Judgment Report
AKPIROROH, J.C.A.
This is an interlocutory appeal against the ruling of the High Court of Imo State holden at Orlu delivered by Nwachukwu J. on 2nd July, 1996 in suit No. HOR/117/85 whereby the preliminary objection challenging the competence of the trial court to entertain the suit for want of jurisdiction was overruled.
Dissatisfied with the ruling, the 1st defendant/appellant has appealed to this court.
In accordance with the Rules of this court, the appellant filed his brief of argument and identified two issues for determination as follows:-
“ISSUES FOR DETERMINATION
- Whether the action is competent and the court can exercise jurisdiction when the plaintiff respondent failed to give written notice of intention to sue as required?.
- Whether in view of section 25 of the Traditional Rulers Law No. 11 of 1981 of Imo State the High Court is only empowered to determine such matters by way of review not by writ of summons?.”
The respondent filed a brief of argument and also identified two issues for determination as follows:-
“ISSUES FOR DETERMINATION
Whether the action is competent and the High Court can exercise jurisdiction when the 3rd defendant, Mr. Victor Onyebukwa (Secretary, Nkwerre/Isu Local Government Area) was not given a written notice of intention to sue him?.
Whether in view of provisions of section 25 of the Traditional Rulers and Autonomous Communities Law No. 11 of 1981, as aggrieved party in the service of recognition of an Eze by the Governor can challenge the exercise and seek redress from the court by writ of summons.”
On the first issue, learned counsel for the appellant submitted that the third defendant/respondent could not have been sued in his personal capacity because he accepted the presentation of the appellant as the Eze of Okwudor. He argued that the Local Government Secretary is a Public Officer by virtue of Item 3, Part II Schedule 5 to the 1979 Constitution of the Federal Republic of Nigeria and by accepting the presentation of the respondent, it is an official act performed by him as a public officer in the execution of his official function as provided by section 5 of the Imo State Law No. 11 of 1981, and as such the act of the 3rd respondent was not private and same was not ultra vires since he was acting within the provisions of the law.
He therefore contended forcefully that the action of the 3rd respondent was an act of the Nkwerre/Isu Local Government itself and relied on Attorney-General of Ogun & Ors. v Attorney-General of the Federation (1982) 1-2 SC 13 at 86. He referred to page 30 lines 1-3 of the record where the learned trial Judge held that the 3rd defendant/respondent was performing a function for the Government of Imo State under sections 5-6 of Law No. 11 of 1981, and contended that he ought to have held further that by virtue of the provisions of the said section 5-6 Law No. 11 1981, that the Government of Imo State had delegated its function to the Nkwerre/Isu Local Government; and as the Local Government usually acts through its functionaries, the 3rd respondent by acting for the said Nkwerre/Isu Local Government Council is entitled to be given a pre-action notice as required by section 163(1) of the Imo State Government Edict No. 20 of 1976. It was also his submission that since the 3rd respondent who was acting for the Nkwerre/Isu Local Government Council was not served with a pre-action notice, the court lacked the jurisdiction to entertain the action. It is of no consequence that the party entitled to the statutory notice before the institution of the action or subsequently before joining him in the court, he submitted and cited in support a litany of cases including Anambra State Government v. Nwankwo & 5 Ors. (1995) 9 NWLR (pt.418) 245.
He further argued that the issue of jurisdiction, must where it arises, be addressed at the earliest opportunity, for any hearing proceeded upon without jurisdiction is a wasteful exercise and cited in support the cases of Madukolu v. Nkemdilim (1962) 2 SCNLR 341 and Skenconsult v. Ukey (1981) 1 SC 6.
He finally urged the court to hold that as the jurisdiction of the court was not activated by serving the statutory notice on the 3rd respondent, the court lacked the jurisdiction to entertain the action.
On the second issue, he submitted that in the instant case, since section 25 of Law No. 11 of 1981 as amended makes provision for the procedure to be adopted by the respondent, failure to follow the provision for initiating an action renders the action incompetent and relied on the cases of Adediran v. Interland Transport Ltd. (1991) 9 NWLR (Pt.214) 155; Ajewole v. Adetimo (1994) 3 NWLR (Pt.335) 739 and Brown v. Brown (1879) AC 615.
He further submitted that the learned trial Judge by raising contravention of the principles of natural justice suo motu and decided on same without hearing from the parties, is a breach of constitutional rights of the parties to fair hearing contrary to section 33(c) of the 1979 constitution of the Federal Republic of Nigeria and urged the court to allow the appeal.
Learned counsel for the 1st respondent submitted that all the prerequisites for the institution of a valid suit as prescribed by the Suprerne Court in the well known case of Madukolu v. Nkemdilim (supra) were satisfied because none of the defendants required a pre-action notice before being brought into court. The argument of the appellant that the 3rd defendant is a party who should be given pre-action notice is clearly misconceived because he is not the Nkwerre/Isu Local Government and he was not sued in his capacity as the Chief Executive of Nkwerre/Isu Local Government. It was also his submission that the parties, having joined issues on the question as to whether the 3rd defendant abused his office and misled the Imo State Government to recognise the 1st respondent as pleaded by the respondent or he acted properly in the discharge of the functions of his office as pleaded by the appellant, the question which version is true becomes a matter to be resolved by evidence in the course of trial and not for the appellant to hold that his version is true and established and use same to found a notice of preliminary objection to the suit not being heard at all. He also argued that the 1st appellant has no business to suggest to the plaintiff/respondent the capacity in which he should have sued the 3rd defendant and the argument as to whether the plaintiff should have sued the 3rd defendant in his private capacity or not will only arise after the plaintiff shall have testified and the court knows the nature of the case the plaintiff has made against the 3rd defendant.
He further contended that the 3rd defendant is not a party entitled to any pre-action notice because his name is not synonymous with Nkwerre/Isu Local Government Council which is not a party to the suit and that being so, the service of a pre-action notice does not arise at all. It was also his submission that the 3rd defendant was not the Chief Executive of Nkwerre/Isu Local Government Council at that time, and as such all submissions made by learned counsel for the appellant are irrelevant. The contention that the 3rd defendant was sued because he accepted the presentation of the appellant to him as the Traditional ruler of Okwudor Autonomous Community is speculative because it was not pleaded.
He further submitted that non service of statutory notice is a statutory defence which a defendant must plead in his statement of defence before he can rely on it in attacking the competence of an action, stressing that non service of a pre-action notice cannot be raised by way of preliminary objection by the party who ought to plead it as a defence and relied on the case of Golji Nkwi & 4 Ors v. Pankshin Local Government & Anor. (1987) 3 NWLR (pt.62) 726 at 735 and Chief John Eze v. Dr. Cosmos I Okechukwu & 7 Ors. (1998) 5 NWLR (pt.548) 43 at 63.
On the second issue, learned counsel submitted that it was absolutely correct in commencing this suit by a writ of summons in view of sections 5(1), (2), 6 and 25 of Law No. 11 of 1981 which makes it quite clear that a party aggrieved by the exercise of recognition of an Eze by the Government, can challenge the exercise and seek redress from the court by writ of summons especially whereas in this, the High Court (Civil Procedure) Rules had no provision for an appeal to the High Court for review at the time the action was contemplated.
On the argument of learned counsel for the respondent, that the learned trial Judge breached the fundamental right to fair hearing of the parties when he failed to call on the counsel for the parties to address him on other provisions of Law No. 11 of 1981 which they omitted in their respective addresses, in favour or against the preliminary objection, he submitted that it is settled law that it is not every mistake of a trial court in raising a point suo motu that will lead to a reversal of the judgment, and that this can only come about if the point raises suo motu is substantial and crucial to the determination of the case and influenced the decision reached by the trial Court and relied on the case of M.F.A. Sons Ltd. v. Federal Housing Authority & Anor. (1991) 8 NWLR (pt.209) 295 at 308.
On the first issue, I am of the view that the 3rd defendant does not require a pre-action notice in accordance with the provision of section 163(1) supra because he is not the Nkwerre/Isu Local Government and he was not sued in his capacity as the Chief Executive of Nkwerre/Isu Local Government but in his personal capacity even though he is described as the Secretary Nkwerre/Isu Local Government Area in the suit. In paragraph 4 of the amended statement of claim, the Respondent pleaded as follows:-
“4. The 3rd defendant is at all material times to this case the Secretary of the Nkwerre/Isu Local Government within jurisdiction. He issued personally for his activities in misleading the Imo State Government in recognising the 1st defendant as the Traditional ruler of Okwudor.”
This shows clearly that the 3rd defendant was sued in his personal capacity not as Nkwerre/Isu Local Government. Besides section 163(1) of the Imo State Government Edict No. 20 of 1976 provides as follows:-
“No suit shall be commenced against a Local Government until one month at least after written notice of intention to commence same has been served upon the Local Government by the intending plaintiff or his agent.”
The above section does not provide for the service of a pre-action notice on the Secretary of the Local Government or the Chief Executive of the Local Government. Indeed, the name of the 3rd defendant is not synonymous with Nkwerre/Isu Local Government.
Besides, the provisions of the Local Government (Basic Constitution and Traditional Provisions) Acts Cap. 213 Laws of the Federation cannot avail the respondent because the provisions of the said statute came into force in 1990 whereas this action was filed in 1985. Moreover, the said Local Government (Basic Constitutions and Transitional Provision) Act does not provide for the service of a pre-action notice on the Secretary or the Chairman of a Local Government before a civil action can be instituted against them for anything done by them in their official capacity. The Nkwerre/Isu Local Government is not a party to this suit and that being so, the service of a pre-action notice does not arise at all.
The contention of learned counsel for the appellant that the 3rd defendant was sued because he accepted the presentation of the appellant to him as the Traditional Ruler of Okwudor is speculative, because it was not pleaded.
If even I hold that the appellant could have served a pre-action notice on the 3rd defendant before instituting the action which of course I do not hold, I am in full agreement with the submission of learned counsel for the respondent that non service of a statutory notice is a statutory defence which must be pleaded before it can be relied on in attacking the competence of an action, and that non service of a pre-action notice cannot be raised by way of preliminary objection by the party who ought to plead it as a defence. See Golji Nkwi & 4 Ors. v. Pankshin Local Government & Anor. (supra). In the more recent case of Chief John Eze v. Dr. Cosmos I Okechukwu & 7 Ors. (supra) the Court of Appeal (Enugu Division) restated the said principle of law to the effect that a pre-action notice being a statutory defence cannot be relied upon by a party who is entitled to rely on it but not pleaded as was done in the case. The respondent cannot now aballance the competence of this suit on this ground by way of preliminary objection having not pleaded it.
From what I have said I am of the clear and firm view that this action is competent and the lower court can exercise jurisdiction to entertain the action. This issue is therefore resolved in favour of the appellant against the respondent.
On the second issue, I would like to reproduce section 25 of Law No. 11 of 1981 as amended which provides as follows:-
“Where the Governor has accorded recognition to any person as an Eze such recognition shall be final. Provided that where any interested party from within the autonomous feels that in the exercise of such recognition of an Eze, the rules of natural justice have been contravened then that party may have, within 21 days of the recognition, the right to the High Court for review of the recognition and the court may make such order as it finds fit for peace, order and good government.”
I wish to point out straightway that the above section has been adjudged to be in violence with some sections of the constitution and declared null and void. See the cases of Nwamara v. Okeahialam & Ors. (1999) 1 NWLR (Pt.588) 590 at 601, and the judgment in Prince O. I. Amadi v. Military Administrator of Imo State & Ors. (2000) 4 NWLR (Pt.652) 328.
Learned counsel for the respondent submitted that the suit ought to have been commenced by way of appeal and review to the High Court as provided for by section 25 of Imo State Law No. II of 1981 and failure to follow the statutory provision rendered the action incompetent and the court should decline jurisdiction. This action was filed in 1985 when the High Court (Civil Procedure) Rules in operation in Imo State was the High Court Rules made under section 85 of the High Court Law Cap. 61 Laws of Eastern Nigeria, 1963 which did not make provision for seeking redress in the High Court by way of application for judicial review. The provision for seeking redress in the High Court by way of application for judicial review was introduced in 1988 through the High Court Law Amendment Edict No.7 of 1988 which introduced new (Civil Procedure) Rules in the High Court of Imo State and came into force on 1st April, 1989.
The claims of the respondent are for declaration, injunction and consequential relief of ordering the Imo State Government to accord him recognition as the rightful Eze of Okwudor Autonomous Community. In effect, his claims are based on the complaint that the appellant obtained recognition as the Eze of Okwudor from the Imo State Government by false representation in contravention of the provisions of Okwudor Autonomous Community and the relevant Chieftaincy Law of the State and the parties joined issued in these complaints in their pleadings.
It is therefore my view that these issues can only be determined by calling oral evidence by both sides and the trial court will be in a position to grant or refuse the reliefs sought. It therefore appears to me that by the provision of sections 5(1)(2), 6 and 25 of Laws No. 11 of 1981 reproduced above, a party aggrieved by the exercise of recognition of an Eze by the Governor can challenge the exercise and seek redress from the court by writ of summons where as in this case, the High Court (Civil Procedure) Rules had no provision for an appeal to the High Court for review at the time the action was filed in 1985. All that I have been saying is that this suit was properly initiated by due process of law because all the conditions precedent for initiating a competent action in court were fulfilled and the action is competent.
I agree entirely with the submissions of learned counsel for the appellant that a complaint of breach of fair hearing cannot be a ground of filing a preliminary objection to a hearing of a suit, because a complaint of a breach affair hearing can only be properly raised if and when hearing in the suit has either started or concluded. In the instant case, the court only made reference to other provisions of Law No. 11 of 1981, in his ruling to which the appellant did not advert his attention in challenging the jurisdiction of the court. It is my considered view that the learned trial Judge was entitled to do this without calling the attention of the counsel for the parties to those provisions; namely section 5(1) 5(2) and 6 of the said Law No. 11 of the 1981.
Assuming, without conceding that the learned trial Judge should have called on the counsel for the parties to address him on the said provisions of Law No. 11, which they had omitted in their respective addresses is not fatal at all because it is not every mistake of a trial court in raising a point suo motu is substantial and crucial to the determination of the case and influence the decision reached by the trial court. See M.I.A and Sons Ltd. v. Federal Housing Authority & Another (supra).
In conclusion, the appeal lacks merit and it is hereby dismissed. The judgment of the lower court is hereby affirmed. The 1st respondent is entitled to costs assessed at N5,000.00 against the appellant.
Other Citations: (2000)LCN/0772(CA)